IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL DIVISION, DURBAN
CASE NO: 2025-205747
In the matter between:
EDUCOR HOLDINGS (PTY) LTD APPLICANT
and
BOWWOOD AND MAIN 131 (RF) (PTY) LTD FIRST
RESPONDENT
THE MASTER OF THE HIGH COURT, DURBAN SECOND RESPONDENT
EDUCOR PROPERTY HOLDINGS (PTY) LTD
(IN PROVISIONAL LIQUIDATION) THIRD RESPONDENT
AFFECTED PARTIES FOURTH RESPONDENT
This judgment was handed down electronically by circulation to the parties’ representatives by email. The date for
handing down is deemed to be 24 November 2025.
ORDER
___________________________________________________________________
1. The applicant's application under Part A of its Notice of Motion is dismissed.
2. The applicant is directed to pay the costs of the first respondent and the
affected party, the Government Employees Pension Fund, on Scale C,
including the costs of senior counsel and the costs of two counsel where
employed.
3. Part B of the application is adjourned sine die.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
SHAPIRO AJ
Introduction
[1] The applicant is Educor Holdings (Pty) Ltd, which is the majority shareholder
of Educor Property Holdings (Pty) Ltd (“EPH”). EPH is in provisional liquidation,
pursuant to an order granted by Madam Justice Jikela in this Court on 23 October
2025 under case number 2025-179256. The applicant in the liquidation application
(which was brought as an urgent application) is Bowwood and Main No 131 (RF)
(Pty) Ltd (“Bowwood”), which is the first respondent in this application.
[2] Educor has launched an urgent application in terms of section 354 of the
Companies Act 61 of 19731 for orders staying the provisional liquidation order and
interdicting any persons (including provisional liquidators) from taking any steps to
interfere with the management of EPH pending the determination of Part B of the
1 Section 354(1) states the following: The Court may at any time after the commencement of a
winding-up, on the application of any liquidator, creditor or member, and on proof to the satisfaction of
the Court that all proceedings in relation to the winding-up ought to be stayed or set aside, make an
order staying or setting aside the proceedings or for the continuance of any voluntary winding-up on
such terms and conditions as the Court may deem fit.
application – which is an order setting aside the provisional liquidation order, likewise
in terms of section 354. Bowwood opposes the application. An affected party, the
Government Employees Pension Fund, also opposes the application – although it
neither delivered a Notice of Opposition nor any opposing affidavit2.
[3] After the application was launched, the Master of the Court (the second
respondent) appointed three provisional liquidators to EPH.
[4] Educor argues that exceptional circumstances exist that justify the staying of
the provisional liquidation order for the following reasons:
[4.1] EPH was denied its right of access to court in terms of section 34 of the
Constitution of the Republic of South Africa, 1996 because the application
was not ripe of hearing, was determined on incomplete papers and without
EPH’s counsel being granted a proper opportunity to be heard;
[4.2] The Court heard the liquidation application as an urgent application
when it was not urgent, and refused EPH’s application for a postponement of
the application to either supplement its papers or apply to strike out portions
of Bowwood’s replying affidavit to its preliminary answering affidavit;
2 The GEPF delivered a confirmatory affidavit, supporting Bowwood.
[4.3] The Court incorrectly accepted that Bowwood was a creditor of EPH
and that EPH was commercially insolvent, and it failed properly to consider
the defences advanced by EPH.
[5] Given the grounds on which Educor relies, it is necessary to consider what
occurred on 23 October 2025.
The events of 23 October 2025
[6] Educor has levelled significant criticism at the way in which the urgent
liquidation application was handled in the Motion Court on 23 October 2025.
[7] The transcript of those proceedings was put up by Educor in this application,
without objection, and I have considered that transcript.
[8] The application papers were served on EPH on 2 October 2023. It delivered a
preliminary answering affidavit in opposition to the application on 13 October 2025.
Shortly after the matter was called on 23 October 2025, Mr Harpur SC (who
appeared for EPH together with Mr Gevers) submitted that the application was
neither ripe for hearing nor urgent and handed Jikela J an answering affidavit as well
as concise and long Heads of Argument and a Practice Note.
[9] EPH’s Heads of Argument3 set out its grounds of opposition: firstly, arguing
that the application was not urgent and was an abuse of process and then advancing
legal defences including the application of the Badenhorst principle, lis pendens, “the
section 45 defence”, “the indemnity defence – no payment, no liability” before
addressing identified paragraphs in Bowwood’s Heads of Argument.
[10] Jikela J stood the application down to consider the papers and Heads given to
her. After the short adjournment, Jikela J ruled that the application was urgent and
she enrolled the application.
[11] Mr Smit SC (who appeared for Bowwood) then made submissions on why a
provisional liquidation order was merited. At the start of Mr Harpur SC’s address in
response, it became clear that he and Mr Gevers’ instructing attorney had not given
them Bowwood’s replying affidavit, which had been delivered on 17 October 2025.
Jikela J stood the application down to enable EPH’s counsel to consider the reply.
The matter was recalled after the long adjournment, and Mr Harpur SC indicated that
a substantive application for a postponement was being prepared. After some
argument, the matter stood down further and was eventually recalled at about
15h00. While the affidavits in support of the application for the postponement were
being commissioned, Mr Harpur SC asked if “in the meantime we can use some of
the time” and then made submissions on the applicability of the judgment in Kalil v
Decotex and the Badenhorst Rule in liquidation applications. These submissions,
3 The Heads were 14 pages long, consisting of 56 paragraphs.
albeit brief, touched on Bowwood’s legal standing to bring the liquidation application
and on the judgment of Rogers J in Orestisolve.
[12] At about 15h20, the application for a postponement was delivered and, at
Jikela J’s request, Mr Harpur SC took her through the founding affidavit – explaining
the lapse that led to EPH’s attorney not providing counsel with Bowwood’s replying
affidavit to the preliminary answering affidavit4. EPH sought a postponement to either
seek leave to supplement its affidavits or to apply to strike out portions of the reply.
The submissions in the founding affidavit dealt also with the court’s discretion in
liquidation applications and the effect of any provisional order on EPH and its
employees. Mr Harpur SC also referred the Court to EPH’s Heads of Argument.
[13] Mr Smit SC then replied, opposing the postponement application and arguing
that EPH’s reliance on section 45 of the Companies Act 71 of 2008 to dispute
Bowwood’s legal standing was misconceived.
[14] Jikela J recorded that she “had the benefit of considering the application
papers and the application for a postponement and…submissions from both counsel
regarding the postponement application” and the postponement application was
refused. Jikela J then turned to the main application. Recording that she had
4 Bowwood’s replying affidavit was 28 pages long, to which 3 annexures were attached: a cession of
rentals in favour of Bowwood by EPH and its subsidiaries, excerpts of a Bill of Costs and a resolution
passed in terms of section 45 of the Companies Act passed by the Board of Central Squash
Properties (Pty) Ltd, a subsidiary of EPH and a resolution of EPH authorizing Central Squash to
render financial assistance in terms of section 45 (I describe the resolutions without making a finding
that section 45 was complied with). The two resolutions, which include a two-page list of Guarantors,
ran to six pages. Central Squash’s section 45 defence to its liquidation was referred to by EPH in its
preliminary answering affidavit.
considered the application papers as well as the Heads of Argument from both
parties and had “the benefit of listening to Mr Harpur addressing the question of
prejudice that was maybe suffered by the respondent should a provisional winding
up order be granted”, the Court granted the provisional liquidation order against
EPH.
[15] It is against this background that Mr Harpur SC argued that the granting of the
provisional order was procedurally and substantively irregular and resulted in a
denial of EPH’s right to be heard and of its access to court.
The Section 354 threshold
[16] Section 354 is expressed in materially the same terms as section 120 of the
Companies Act 46 of 1926. In Aubrey M Cramer Ltd v Wells NO5, it was held that an
application under section 120 “is an extraordinary one and one that would be granted
if at all in only rare cases”.
[17] The Supreme Court of Appeal considered section 354 in Ward & Another v
Smit & Others6 and held as follows:
“The language of the section is wide enough to afford the Court a discretion to set
aside a winding-up order both on the basis that it ought not to have been granted at
all and on the basis that it falls to be set aside by reason of subsequent events. In the
5 1965 (4) SA 304 (W) at 305
6 1998 (3) SA 175 (SCA) at 180H-181C
case of the former, the onus on an applicant is such that generally speaking the order
will be set aside only in exceptional circumstances...
There is nothing in the section to suggest that the Court's discretionary power to set
aside a winding-up order is confined to the common-law grounds for rescission.
However, in the Herbst case supra, Eloff J expressed the view (at 109F--G) that no
less would be expected of an applicant under the section than of an applicant who
seeks to have a judgment set aside at common law. I think this must be correct. The
object of the section is not to provide for a rehearing of the winding-up proceedings
or for the Court to sit in appeal upon the merits of the judgment in respect of those
proceedings. To construe the section otherwise would be to render virtually
redundant the facilities available to interested parties to oppose winding-up
proceedings and to appeal against the granting of a final order. It would also 'make a
mockery of the principle of ut sit finis litium'.7”
[18] The Court referred with approval to the judgments of Herbst v Hessels NO en
Andere8 and Abdurahman v Estate Abdurahman9 . In Herbst, Eloff J cited the
following paragraphs of Abdurahman with approval:
"An order whereby a Court sets aside its earlier judgment is an extraordinary form of
relief granted to a litigant. The grounds upon which such relief could be obtained at
common law are well known and very limited…
The Courts of various Provincial and Local Divisions have in the past not considered
the discretionary power conferred by this section to be limited to rescission on the
common law grounds. They have however stressed that unusual or special or
7 Translation: It is in the interest of the state that there be an end to litigation.
8 1978 (2) SA 105 (T)
9 1959 (1) SA 872 (C) at 108H-109E
exceptional circumstances must exist in order to justify relief under s 149 (2). With
respect, it appears to me that this approach is based upon sound principles."
"Examples of special and exceptional circumstances which have been found to exist
in particular cases are mostly of a kind where the debtor was in fact not insolvent, or
had made provision for the payment of his creditors in full, and where in addition he
had laboured under some disability or difficulty as regards contesting the
sequestration proceedings. See, for example. Ex parte Belcher 1939 WLD 39 or,
alternatively where in addition unnecessary hardship would be involved for himself
and/or for others in the event of his being confined to the ordinary rehabilitation
machinery. I have not come across a single case and none has been cited from the
Bar in which relief has been granted under s 149 (2) merely upon considerations
which affect the merits of the sequestration proceedings."
"In the present case, upon a reading of the allegations in the declaration in a manner
most favourable to the plaintiff, it is clear that the declaration does no more than to
raise considerations which would have constituted a good defence on the merits to
the sequestration proceedings if they had been properly raised and decided in the
plaintiff's favour as to their factual aspects… In short, therefore, the declaration
broadly invites this Court to rehear or to sit in appeal upon the judgment in the
sequestration proceedings as regards the merits thereof. In my opinion this is an
invitation to which the Court should not reasonably accede…"
[19] I have quoted at some length from these cases because, cumulatively, they
describe both the nature of the threshold that Educor must breach, as well as the
nature of an application in terms of section 354: these applications are “extraordinary
and rare” and they are granted only in “unusual”, “special” or “exceptional
circumstances”10.
[20] The cases also make clear that the grounds relied upon by Educor must be
scrutinised to determine their real nature and effect - recalling that this application is
neither a rehearing of the liquidation application nor an appeal in respect of the
merits of Jikela J’s decision
[21] Educor has argued that section 354 confers a wide, equitable discretion on a
Court to set aside a liquidation order that should not have been granted in the first
place.11 This is so, but any discretion must be exercised on the basis that Educor
has met the required threshold.
Did the hearing result in a denial Educor’s rights of access court and to be heard?
[22] Mr Harpur SC argued that the way Jikela J dealt with the liquidation
application resulted in a failure of justice and an effective denial of EPH's
constitutionally enshrined rights of access to court and to be heard.
[23] Principally this was because the application was not urgent, the papers were
not complete, EPH's postponement application should have been granted, and it was
not permitted to make sufficient sufficiently detailed submissions before the
10 A brief survey of cases that consider the phrase “exceptional circumstances” in civil, criminal and
labour contexts reveals the same themes: the circumstances must be unusual, extraordinary,
remarkable or involve gross injustice. The threshold is indeed a demanding one.
11 Klass v Contract Interiors CC (In Liquidation) and Others 2010 (5) SA 40 (W) at para [57]
provisional order was granted – meaning that certain of its defences were not
considered.
[24] It was argued that the EPH and its counsel were prejudiced by their belated
discovery that a replying affidavit to the preliminary answering affidavit had been
delivered some days earlier which they had not had an opportunity to consider and
that the reply sought to introduce new evidence in the form of the annexures
attached to the reply.
[25] Urgent applications in this Division are not heard separately in a dedicated
urgent court. They are set down in the ordinary Motion Court and, if the judge is
persuaded that the matter is urgent, the matter will be heard during the court day12.
Necessarily, this means that urgent applications are often dealt with in a non-linear
fashion, as opposed to in one uninterrupted hearing as may occur when a matter is
argued on the opposed motion roll.
[26] The question whether to enrol an application as urgent is a discretion
exercised by the presiding judge. Once that discretion is exercised, the matter must
proceed and if a party is dissatisfied with the exercise of that discretion and can
satisfy the court that the discretion was not exercised judicially, it has remedies
available to it.
[27] The same would apply to the refusal of a postponement – to the extent that
this would be appealable. Jikela J exercised her discretion to refuse the application,
12 As happened in this application, which was argued after the unopposed and opposed roll had been
disposed of.
as she was entitled to do. A single judge in a subsequent matter cannot revisit the
exercise of that discretion.
[28] However, Jikela J did not grant a provisional liquidation order because she
found that the matter was urgent or because she refused to postpone the
application. The liquidation order was granted because the Court was satisfied that it
was appropriate to do so and that a prima facie case for that order had been made
out.
[29] This was not the sort of application where EPH did not have the time or
capacity to deliver opposing papers and would have been limited to oral submissions
made on its behalf. Had it then been denied an opportunity to make submissions,
perhaps that would have been grounds to complain that it had been denied its right
to be heard. However, EPH delivered two affidavits in opposition to the liquidation
application, and it delivered concise and long Heads of Argument. The opposition
was not based on different facts advanced or on a version requiring a credibility
assessment but instead on several legal propositions.
[30] Jikela J stood the application down to consider the EPH's answering affidavit
and its Heads of Argument. Jikela J considered that affidavit, even in the face of
Bowwood's argument that the affidavit was improper and should not have been
received.
[31] The replying affidavit did not introduce a new case or new material. It dealt
with the defences raised in the preliminary answering affidavit and, to the extent that
it referred to the section 45 resolutions passed by EPH's subsidiaries, it did so, firstly
to argue that the subsidiaries' section 45 defence was not sustainable but more
specifically, to seek to distinguish between the subsidiaries’ reliance on section 45
and the ability of EPH to do so where there was both a direct contractual
lender/borrower relationship between it and Standard Bank and a direct contractual
relationship between itself and Bowwood.
[32] The section 45 resolution that was attached to the reply was not a new
document that had never been seen before by EPH or its deponent. Even if it was a
new document however, it did not affect the case made out by Bowwood that section
45 did not arise in the direct contractual relationship between itself, EPH and
Standard Bank and did not affect its standing as a creditor of EPH or its capacity to
seek the liquidation of EPH.
[33] There was not a material difference between the themes addressed in
Bowwood's reply and the themes advanced in its Heads of Argument that EPH had
considered, and in respect of which it made comments in its own Heads of
Argument.
[34] It is so that Jikela J dealt with the matter expeditiously and did not receive
lengthy or expanded oral submissions from the parties' counsel.
[35] Mr Harpur SC argued that EPH had been denied the right to be "heard"
because it was not given the opportunity to make sufficient or detailed oral
submissions.
[36] I cannot agree: whilst (as Mr Harpur SC correctly points out), the audi alteram
partem principle requires that a party be heard, this cannot mean invariably that such
a party must be heard orally for an application to be deemed to be procedurally and
substantively regular and fair. Every case must be considered on its own facts.
[37] The principle grants a party right to present their case and for their argument
to be placed before a judge. That is what occurred in the urgent application and the
inability of EPH to develop its submissions orally to its satisfaction does not alter the
fact that the gravamen of those submissions and the law and cases to which it
referred were before the presiding judge and had been considered by her.
[38] In my view, it is dangerous to import elastic considerations of "sufficiency” of
submissions in the opinion of counsel or their clients when determining whether a
party has been denied their right of access to court or to be heard. The test is more
objective than that. Our courts often impose time limits on oral argument, not only
because of the state of the court rolls but also because parties have already had an
opportunity to deliver their arguments to the court. Oral submissions are for the
benefit of the presiding judge, to clarify or elaborate upon that which has already
been advanced in the written product.
[39] Having considered the transcript as a whole as well as the application papers
and the Heads of Argument that served before Jikela J, I cannot identify any
procedural irregularity that either vitiated the proceedings or denied EPH its
constitutional rights. It was given sufficient opportunity to consider its position,
consider the reply, launch a postponement application and to place its case and
argument before the court. EPH was able to deliver two affidavits and Heads of
Argument, and the presiding judge took time to consider those papers and was taken
through the affidavit in support of the postponement application by Mr Harpur SC.
[40] It follows that Educor's challenge to the procedural regularity of the hearing
and the granting of the provisional liquidation order must fail.
Educor's substantive challenge to the provisional order
[41] Educor argues that Jikela J overlooked a number of substantive defences that
EPH had advanced against the granting of a provisional liquidation order.
[42] The following substantive defences were canvassed in EPH's preliminary
answering affidavit and in its heads of argument in the liquidation application: section
45 and its legality; the Indemnity Defence and whether it was contra bonos mores;
bona fide dispute/Badenhorst principle; lis pendens and abuse of process.
[43] Educor cannot argue that these defences were not considered by Jikela J
simply because she did not refer to them when granting the provisional order. Those
defences were before her in writing and in detail.
[44] As regards the alleged commercial insolvency of EPH, Jikela J was satisfied
prima facie that EPH was commercially insolvent.
[45] One can accept that the presiding judge agreed (or was not persuaded to the
contrary) that section 45 did not apply in the circumstances of the direct
lender/borrower relationship between Standard Bank and EPH or in respect of the
contractual relationship between EPH and Bowwood.
[46] Without making a finding in this regard, I can see why Jikela J reached that
conclusion, and I too struggle with the notion that section 45 would apply in these
circumstances. However, that decision is for another court to make on a different
day.
[47] Mr Smit SC and Mr Wasserman SC (who appeared for the GEPF together
with Ms Vorster) argued that Educor’s substantive challenges are grounds of appeal,
properly so called, because they are based on misdirections by Jikela J about
whether Bowwood was a creditor of EPH, whether there was a genuine and bona
fide dispute about the debt and whether EPH was commercially insolvent.
[48] Both counsel argued that I was precluded from considering these substantive
challenges in a section 354 application because either they amounted to a rehearing
of the application or I was being asked to sit effectively as a Court of Appeal.
[49] In response, Mr Harpur SC argued that if grounds that also would constitute
grounds of appeal or a rehearing also separately constituted exceptional
circumstances, I was entitled to consider them in determining whether Educor had
passed the required threshold permitting a section 354 order staying the provisional
liquidation order to be granted.
[50] It seems to me that the proposition that "exceptional circumstances" may be
permitted to include findings which affect the merits of the liquidation proceedings
and which would constitute grounds of appeal ignores the bright dividing line that our
courts have drawn in these cases between that which is considered to be
exceptional, on the one hand, and that which would constitute a rehearing of the
liquidation or an appeal against it on the other.
[51] In my view, cases in terms of section 354 and its predecessor are rare
precisely because the grounds upon which such an application can succeed are
extremely limited and cannot include grounds that constitute a rehearing or an
effective appeal.
[52] The courts have held that the discretion under section 354 is wider when
considering events that occurred after the granting of a provisional liquidation order,
and this makes sense. The corollary of course is that the discretion is more limited
when the complaint is that the order should not have been granted at all. It cannot be
ignored that the same Act that endows parties with the ability to appeal the granting
of liquidation orders13 (which appeal constitutes, in essence, a rehearing of the
application) grants the limited rights available under section 354. The two procedures
are separate, with separate jurisdictional grounds.
[53] Apart from the allegations of procedural irregularity, Educor's complaints are
not in the same category as those that our courts have found to be both permissible
and exceptional. Educor's real complaints are substantive and go directly to whether
13 Section 339 of the Companies Act 61 of 1973 read with section 150 of the Insolvency Act 24 of
1936
there were grounds in law that permitted the granting of the provisional order.
[54] Despite disavowing this intention, it seems to me that Educor asks that I
conclude that prima facie Bowwood was not a creditor of EPH, that the debt upon
which Bowwood relied was disputed genuinely and in good faith and that EPH is not
commercially insolvent.
[55] Were I to do this, I would in substance either be rehearing the liquidation
application or I would be finding that Jikela J misdirected herself in granting the
provisional liquidation order on those bases.
[56] I agree with Mr Smit SC and Mr Wasserman SC that I do not have jurisdiction
to do so under section 354 because I would then be collapsing the distinction
between a section 354 application and a rehearing or appeal against the granting of
a winding up order in circumstances where our courts repeatedly have stated that
the distinction must be maintained.
[57] I therefore conclude that I have no jurisdiction to consider substantive attacks
on Jikela J's findings, as doing so would constitute a rehearing of the liquidation
application or an implicit appeal against her order.
[58] I accept that the granting of the provisional order visits some hardship on EPH
and its employees. However, that is a natural consequence of a provisional
liquidation order, fortified by the statutory suspension of employment contracts when
such an order is granted. A consequence that applies by operation of law, even if it
visits some hardship, cannot then be exceptional or unusual justifying the staying of
the provisional order under section 354.
[59] Educor's complaints in this regard therefore cannot succeed.
The interim interdict sought
[60] Educor sought an interim interdict restraining anyone, including provisional
liquidators, from interfering with EPH's management's ability to operate and control
its business pending the final determination of Part B of this application.
[61] Educor asserted that prima facie its right to a fair hearing was infringed when
the provisional order was granted without full argument or consideration of the
replying affidavit. I have already found that its rights were not infringed and Educor
therefore has not established a prima facie right to the interdict it sought.
[62] The right to such an interim interdict must flow from an order being granted in
terms of section 354. If no order is made staying the liquidation proceedings, I
cannot conceive of any other circumstances where a court would then be permitted
to interdict lawfully appointed liquidators from discharging their statutory duties.
[63] The application for the granting of an interim interdict must likewise fail.
The affected party
[64] Educor cited the GEPF as an affected party and the GEPF was therefore
entitled to appear and make submissions in defence of its interests.
[65] The submissions made on behalf of the GEPF were of assistance to the
Court. The costs incurred in doing so were legitimately incurred and will form part of
the order that I make.
Costs
[66] All the parties were represented by senior counsel and both Educor and the
GEPF were represented by two counsel.
[67] The matter was sufficiently complex to justify the employment of two counsel.
For the same reasons, costs should be taxed on Scale C as well.
[68] There was no dispute between the parties that costs should follow the result
or that costs of two counsel were justified.
Order
[69] I make the following orders:
1. The applicant's application under Part A of its Notice of Motion is dismissed.
2. The applicant is directed to pay the costs of the first respondent and the
affected party, the Government Employees Pension Fund, on Scale C,
including the costs of senior counsel and the costs of two counsel where
employed.
3. Part B of the application is adjourned sine die.
_________________
SHAPIRO AJ
Appearances
For the applicant: G D Harpur SC
A Gevers
Instructed by Alvia Nair Attorneys
4 Hilclimb Road, Westmead
alvianair@gmail.com
C/O KS LAW
44 Walls Ave,Greyville
admin@kslaw.co.za
For the first respondent: J Smit SC
Instructed by Werksmans Attorneys
The Central,Sandton
avandermerwe@werksmans.com
C/O Garlicke and Bousfield Inc
7T Orsvale Crescent, La Lucia Ridge
Victoria.macdonald@gb.co.za
For the Government Employees
Pension Fund (affected party): G Wasserman SC
Ms Vorster
Date of hearing: 13 November 2025
Date of judgment: 24 November 2025